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NLRB General Counsel Looks to Expand Reach of Federal Labor Law to Private Colleges and Universities; Believes that Scholarship Football Players are Employees

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February 9, 2017

By Christopher A. Johlie, Amy Moor Gaylord, and Melissa D. Sobota

Since 2014, the National Labor Relations Board has issued three significant decisions related to union organizing at private universities: Pacific Lutheran University; Columbia College; and Northwestern University. We previously reported on each of these decisions here, here, and here. All three cases were “representation cases” and arose in the context of a union’s attempt to organize graduate students, student-athletes, or faculty. In those cases, however, the NLRB did not address how the unfair labor practice provisions of the National Labor Relations Act apply to students or workers at private universities.

Last week, Richard Griffin, the NLRB’s General Counsel, issued a sweeping memorandum in which he explained how his office will apply the legal principles established in the representation cases to unfair labor practice cases involving private universities. Keep in mind that Mr. Griffin is, among other things, the prosecutor of alleged NLRA violations. Although he sets the agency’s prosecutorial agenda, neither he nor his office is the “NLRB” and his view of the law is not binding on the five-member NLRB whose job it is to issue decisions interpreting the law.

In his memo, the General Counsel stated that his office will apply the Pacific Lutheran standards for representation cases to determine whether it is appropriate to “seek redress for individual faculty members or other employees who are victims of unfair labor practices.” In order to apply these standards in an unfair labor practice case, the GC will first look at the institution itself to determine whether the university “holds itself out to students, faculty, and community as providing a religious educational environment.” According to the GC, this is not a heavy burden for a university to meet and does not include an evaluation of whether the university is “religious enough.” The second step in the analysis focuses on the individual faculty member to determine if there is a connection between the performance of a religious role and the individual faculty member’s job. If there is such a connection, for example, where the faculty member serves as a religious advisor to students, the GC will not prosecute an alleged unfair labor practice against that faculty member based on lack of jurisdiction. Conversely, the GC explained that, “we will …seek redress for unfair labor practices committed by religious education institutions against individual faculty member discriminates who the university does not hold out as performing a specific role in creating and maintaining the university’s religious educational environment.”

The General Counsel’s memo also covered “managerial” employees at private universities. In analyzing whether to pursue an unfair labor practice charge against a private university on behalf of a putative “managerial” employee, the GC will apply the new Pacific Lutheran test which examines the faculty member’s participation in decisions regarding academic programs, enrollment management policies, finances, academic policies, and personnel policies and decisions. If the faculty member has decision-making authority over most or all of these things, then the GC will decline to prosecute the alleged unfair labor practice.

The General Counsel’s discussion of the NLRB’s Columbia College decision was a fairly benign review of the cases leading up to Columbia College and the NLRB’s conclusion in that case that student assistants are employees under the Act because they “perform their duties for, and under the control of” their university, which in turn pays them for those services—a situation indistinguishable from a traditional master-servant relationship.”

The General Counsel, however, believes that Columbia College reaches beyond student assistants as employees and he believes that undergraduate student workers performing non-academic work, such as cafeteria or maintenance workers, are employees as defined by the Act and, depending on the circumstances, may be entitled to protection from unfair labor practices.

Finally, the General Counsel dropped the surprising bombshell that he believes “scholarship football players in Division I FBS private sector colleges and universities are employees under the NLRA, with the rights and protections of that Act.” In reaching his conclusion, the General Counsel noted that the NLRB in the Northwestern case did not determine whether the scholarship football players were or were not employees as defined by the Act. Relying on the standards set forth in Columbia College and the record from Northwestern University, the General Counsel concluded that the scholarship football players at all Division I FBS private colleges and universities are employees because they perform services for their colleges and the NCAA and receive compensation in return. As such, he continued, scholarship football players have the protected Section 7 right to concertedly speak out about aspects of their terms and conditions of employment such as requesting greater protections against concussions, demanding reforms to the NCAA rules so that they can share in profit, or self-organizing. The GC did point out that his conclusion was limited to scholarship football players and that the status of other scholarship student-athletes would depend on the facts of each case.

Mr. Griffin’s memo was not greeted favorably by several Republican lawmakers on the House Committee on Education and the Workforce, who complained that of the memo’s “devastating consequences for students and academic institutions” and blasted the General Counsel for attempting to push forward a “partisan agenda” while President Trump is trying to “move the NLRB in a new direction.” Although the lawmakers demanded that the General Counsel either rescind the memo or resign, as of today, Mr. Griffin remains in his job and the memo has not been rescinded.

We recommend that private universities familiarize themselves with the General Counsel’s memo and understand that the NLRB Regional Offices may use it to guide their investigations, at as long as Mr. Griffin remains the GC. Understand, however, that the memo is not the law, and merely represents the current General Counsel’s views. Mr. Griffin’s term expires in November and there is no chance he will be reappointed. A new GC, who likely will align with the Trump administration’s pro-employer stance, may have no use for the memo. 

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